[TChad]

Roberts put a wall up at Wickard. The Commerce Clause expansion of the last century has stopped.

Not according to Mark Levin. The Roberts remarks about the Commerce Clause were from Roberts alone and were not part of the majority opinion.

Mark Levin, from http://www.nationalreview.com/corner/304459/mark-levin-not-so-fast-commerce-clause-kathryn-jean-lopez:

Notably, this does not explicitly state that the dissenters joined with the Chief’s opinion respecting the commerce clause. If five justices had intended for their view of the commerce clause to be controlling as the majority view of the court, they would have said so by joining or concurring in each others’ parts. They didn’t. There was no formal majority on the commerce clause issue. Should this matter come before a court again, it is not settled as a matter of precedent and no doubt the litigants will still be fighting over it.

[sam_paine]

TCHAD: Not according to Mark Levin. The Roberts remarks about the Commerce Clause were from Roberts alone and were not part of the majority opinion.

That is correct, that vote was 4-1-4. But Alito, Scalia, Thomas and Kennedy could have joined that opinion without conceding the tax argument.

So why didn't they take the opportunity and join and make it 5-4 commerce clause precedent?